Calcutta High Court (Appellete Side)
Sumita Das & Anr vs Manirul Purkait & Ors on 16 June, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1 16-06-17 Item No. 15 AD C.O. 4162 of 2016 Sumita Das & Anr.
-vs-
Manirul Purkait & Ors.
Mr. Debjit Mukherjee Mrs. Susmita Chatterjee.
... for the petitioner.
Mr. Sk. Nizamuddin ... for the opposite party.
Heard Mr. Mukherjee, learned Advocate being assisted by Mrs. Chatterjee representing the petitioner and also Mr. Nizamuddin, learned Advocate, representing the opposite party.
Hearing is concluded and the case is taken up for recording the order. Perused the materials on record. Let the copy of the impugned deed dated 28th March, 2014 as submitted by Mr. Mukherjee be kept on record for future reference since the same was not accompanied with the application.
The application has been directed by the petitioners/pre-emptees of the pre-emption case assailing the order dated 27th September, 2016 passed by the learned Additional District Judge, Fast Track, Court No.1, Howrah, in Misc. Appeal No. 160 of 2015 reversing the Order No. 8 dated 1st August, 2015 passed by the learned Civil Judge (Junior Division), 1st Court in L.R. Misc. Case No. 1808 of 2014.
Perused the materials on record, the impugned order and the copy of the impugned deed.
2
According to the case of the opposite party who was the pre-emptor in the Misc. case had sought pre-emption in respect of the B schedule property covered in the impugned deed dated 28th March, 2014, registration of which was completed on 18th September, 2014. It was the allegation that the impugned deed was designed as a deed of gift in disguise of sale deed with a view to frustrate the right of pre-emption.
Learned trial Court entertaining the application under Order 7 Rule 11 of the Code of Civil Procedure rejected the pre-emption application in terms of Section 8 sub-section (2) of the West Bengal Land Reforms Act, 1955.
For convenience of all purposes, the provision laid down in Section 8 sub- section (2) of the West Bengal Land Reforms Act is set out :
"(2) Nothing in this section shall apply to -
(a) a transfer by exchange or by partition, or
(b) a transfer by bequest or gift [or heba-bill-ewaz,] or
(c) a [***] mortgage mentioned in section 7, or
(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit [for any individual, or]"
Being aggrieved the petitioner of that pre-emption case as appellant preferred Misc. Appeal and learned lower Appellate Court reversed the order of the learned Trial Court with the observation that the petition under Order 7 Rule 11(d) cannot be considered at this stage for proper adjudication by interpreting the recitals of the deed. The relevant portion of the observation of the learned Appellate Court is set out :
"Ld. Trial Court has to consider the evidence and relevant documents regarding this characteristics of the gift deed and monetary transaction if any at that time between 3 the parties, to adjudicate the case properly, because the promise to expend regarding the deity by the donee gives the deed different colour. The petition u/o 7 r 11(d) cannot be considered at this stage for proper adjudication.
In the light of above observations, if appears that the order of Ld. Trial Court is liable to be set aside.
In the result, the Misc. Appeal is allowed."
In a case of pre-emption, the document impugned is to be interpreted as it stands and its nature, character and validity can be challenged only by either of the parties to the instrument, had there been any cogent and lawful ground. But in a pre-emption case the pre-emptor seeking pre-emption in respect of the property covered by a particular document is not entitled to challenge the nature and character of the document except challenging the said instrument on other aspect if it falls only within the ambit of Section 9 of the West Bengal Land Reforms Act. Therefore, learned Trial Court correctly appreciated the provisions of law laid down Section 8(2) to hold that the said pre-emption case was barred by law and rightly recorded under Order 7 Rule 11(d) of the Code of Civil Procedure. Learned Appellate Court who was assumed to be much matured than the learned trial Court in terms of span of service wrongly appreciated the law by the above quoted observations.
In view of the existing nature and character of the impugned instrument, learned Appellate Court ought not to have observed that it would be a matter of evidence for proving the impugned deed either as a deed of sale or deed of gift, which is not permissible under law as discussed above, that too within the ambit of a pre-emption proceeding.
4
Therefore, upholding the Order No. 8 dated 1st August, 2015 passed by learned trial Court in L.R. Misc. Case No. 1808 of 2014, the judgment dated 27th September, 2016 passed by the learned Additional District Judge, Fast Track Court - I, Howrah in Misc. Appeal No. 160 of 2015 is set aside and quashed and the revisional application being C.O. No. 4162 of 2016 stands allowed affirming the order of learned trial Court with cost of Rs. 3,000/- which shall be payable by the opposite party/pre-emptor before the learned trial Court with reference to the L.R. Misc. Case No. 1808 of 2014 as was filed before the Court of the learned Civil Judge (Junior Division), 1st Court, Howrah on vexatious plea forcing the petitioner/pre-emptee to pursue with such vexatious litigation. On failure to make payment of such cost within a period of two months on the date of the order, the petitioner/pre-emptee may be at liberty to put this order regarding payment of cost into execution before the learned trial Court (without making any reference to this Court) for its satisfaction and in that event, the petitioner/pre- emptee shall have the liberty to join further cost of litigation for realisation of that amount by way of execution.
Department is directed to communicate a copy of this order to the learned trial Court.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Mir Dara Sheko, J.) 5